Interim Management Terms of Business

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1. General Provisions and Definition

1.1. This document contains the Terms and Conditions (“Terms of Business”) under which SpenglerFox supplies Interim Management services to its clients.

1.2. In these Terms of Business:

1.2.1. “Client” means the person, firm or corporate body who engages SpenglerFox to provide Interim Services.

1.2.2. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.

1.2.3. “Data Protection Legislation” means any and all applicable laws and regulations relating to the Processing of Personal Data and privacy which apply to a Party and, if applicable, the guidance and binding codes of practice issued by the relevant data protection or supervisory authority, as may be revised and superseded from time to time, including but not limited to EU 2016/679 General Data Protection Regulation (the “GDPR”); (ii) Directive 2002/58/EC as updated by Directive 2009/136/EC; and (iii) the Irish Data Protection Acts 1988-2018, as applicable.

1.2.4. “Data Subject” means an identified or identifiable living natural person who is the subject of Personal Data, which for these purposes may include a Candidate.

1.2.5. “Interim Manager” means a person performing Interim Services for and on behalf of SpenglerFox that has been commissioned by the Client.

1.2.6. “GAER” means Gross Annual Expected Remuneration, which is comprised of the following, provided that they are offered to the Candidate: annual gross basic salary, annual expected performance bonus (target bonus), guaranteed bonus such as “welcome bonus”, housing and transport allowances, corporate car (equivalent to a benefit of €10,000 per year) and any other benefit that is included in the employment contract.

1.2.7. “Party” means SpenglerFox, or the Client and the “Parties” means both of them.

1.2.8. “Personal Data” means any information relating to an identified or identifiable living natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

1.2.9. “Place of Duty” means the location where the Interim Services are to be performed.

1.2.10. “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and the words “process” or “processes” or “processed” shall be construed accordingly.

1.2.11. “Interim Management Agreement” means the provision of Interim Services by SpenglerFox to the Client.

1.2.12. “Interim Manager Agreement” means the provision of Interim Services by the Interim Manager to SpenglerFox.

1.3. These Terms of Business apply to the Interim Management Assignment to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2. Services and obligations of SpenglerFox

2.1. The services to be rendered by SpenglerFox are the Interim Services commissioned by the Client. SpenglerFox subcontracts the Interim Services to the Interim Manager in the Interim Manager Agreement.

2.2. Mr. Rico Kaczmarek of SpenglerFox shall be the Client’s contact person and shall act as the coordinator in the event of any irreconcilable differences between the Client and the Interim Manager.

2.3. The Interim Manager shall determine his/her specific working days in order to perform the Interim Services at his/her own discretion, but with due consideration given to the needs of the Client.

3. Services and obligations of the Client

3.1. The Client shall ensure that all information and documentation required by SpenglerFox for the provision of services to be rendered are made available in a timely manner.

3.2. The Client shall ensure by the way the agreement is implemented and by suitable internal organizational measures that an agreement entered into with an Interim Manager may not retroactively be converted into an employment relationship. This does not prevent the Client from hiring the former Interim Manager as an employee or engaging the person as Interim Manager via a third party as soon as the assignment for which the Interim Manager was referred by SpenglerFox is completed. Section 4 of this agreement shall apply regarding fees incurred as a result.

3.3. If the Interim Manager referred by SpenglerFox is to be employed by the Client in a fiduciary position, in particular by entrusting the Interim Manager with the handling of money and/or valuables, the Client shall inform SpenglerFox of this in advance. In such case, a separate agreement shall be entered into with SpenglerFox.

3.4. The Client commits to equip the Interim Manager with the powers and authorizations necessary for the performance of the Interim Services, as well as to grant the Interim Manager, for purposes of the performance of the Interim Services sufficient access to relevant data and documents and to ensure that the Client’s employees provide the Interim Manager with technical assistance.

3.5. The Client is responsible for obtaining any necessary work permits or other permits, including particularly to ensure the legality of work assigned to the Interim Manager referred by SpenglerFox.

3.6. In the event that the Interim Manager, for technical or personal reasons, is not sufficiently able to perform his/her duties as required, the Client is entitled to release SpenglerFox, upon 10 working days’ notice, from the further fulfilment of the Agreement. The Client shall reimburse SpenglerFox for costs incurred until such date. Nothing herein shall affect the possibility on the part of SpenglerFox of proposing an alternative candidate. The client shall give SpenglerFox the opportunity to present an alternative candidate within 4 weeks and shall invite the alternative candidate to at least one face-to-face interview.

4. Fees

4.1. For the Interim Services, SpenglerFox will charge the Client a fee in the amount of the daily rate as agreed with the Client plus local VAT if applicable.

4.2. Invoices will be raised monthly on the basis of time sheets submitted by the Interim Manager. The Interim Manager has committed to prepare a time sheet of his activities which indicates the Interim Manager’s specific working days. On the final working day of each week the Interim Manager will send the time sheet to the Client and SpenglerFox. Insofar as no objections to the time sheet are raised within five working days after receipt thereof, the time sheet will constitute the basis for billing.

4.3. In the case of Interim Management, the Customer shall have an authorised representative check hours/days worked by the Interim Manager on the basis of time sheets on a weekly and/or monthly basis. The representative must confirm the time sheet data by affixing a signature and the company seal and/or via email confirmation. SpenglerFox receives the original time sheet, the Customer receives a copy. If SpenglerFox does not receive a time sheet signed by the Customer for billing purposes, billing shall be affected based on a 40-hour work week unless a different work week is contractually agreed.

4.4. The Client commits to cover all cost for travel undertaken by the Interim Manager within the context of the performance of his activities for the Client. For these purposes, the Client shall assume the costs of train travel, economy-class flights within Europe, and a flat rate of € 0,50 per kilometre driven by car, plus VAT at the applicable statutory rate.

4.5. Furthermore, if explicitly agreed, the Client shall organize and cover all cost for accommodation for the Interim Manager at the Place of Duty.

4.6. The expenses of the Interim Manager will be invoiced directly from the Interim Manager to the Client.

4.7. If either instead of, during, or within a one-year period after the termination of the Interim Management Agreement the Client contracts with an Interim Manager referred by SpenglerFox (regardless of the nature of the engagement, be it employment, contractual or any other work, service or consultancy engagement), SpenglerFox is entitled to a fee in the amount of 30% plus VAT of GAER. The fee is payable within 8 days of establishment of an employment relationship, i.e. contract signing.

4.8. The Client shall likewise be bound by this payment obligation if he introduces the Interim Manager to a third party (including a corporate affiliate of the Client, for example another Group subsidiary) and the Interim Manager is engaged on a temporary or permanent basis by the third party within a period of 12 months after the termination of the Interim Management Agreement.

4.9. The Client must notify SpenglerFox in writing immediately upon contract signing/hiring (within 7 calendar days) of having employed an Interim Manager referred by SpenglerFox, and of the employed individual’s GAER, providing corresponding documentation.

4.10. This claim is unaffected by whether the Client approaches the Interim Manager, or the Interim Manager applies with the Client or a Group company of his/her own initiative.

4.11. In case of a combined use of both Executive Search and Interim Management, a 2% discount applies to SpenglerFox fees for the provision of each service. The discount is applicable only for similar positions and at the condition that the agreements for the two services are signed simultaneously.

4.12. For the time of this assignment and 12 months thereafter the Client agrees not to engage or to attempt to engage any member of SpenglerFox’ staff. A flat fee of €40,000 will be payable should this clause be breached.

4.13. All invoices are due for payment within 14 calendar days of the date of invoice. SpenglerFox reserves the right to charge late payment interest at 0.05% of the outstanding amount per day. Where applicable, VAT is charged at the current rate at the time of invoicing. All costs of bank transfer or foreign exchange will be borne by the Client.

4.14. The Client may only offset claims against amounts owed that are acknowledged by SpenglerFox or have been upheld by legal judgment.

4.15. The Client is not authorised to pay any monies to the Interim Manager referred by SpenglerFox for any reason. Employees of SpenglerFox and Interim Managers deployed are not authorised to receive any payments from the Customer on behalf of SpenglerFox.

5. Term and fulfilment of the Agreement

5.1. This Agreement shall start on the Commencement Date and shall run for an indefinite period.

5.2. This Agreement can be terminated by either party with a 2-week prior notice. Notice of termination shall be given in writing. Nothing herein shall affect the right to terminate the Agreement by way of extraordinary termination.

6. Liability and Indemnification

6.1. SpenglerFox shall perform its Interim Services with care.

6.2. SpenglerFox shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with SpenglerFox performing the services under this Agreement or from the failure of SpenglerFox to do so. For the avoidance of doubt, SpenglerFox does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.

7. Intellectual Property Rights

7.1. Where the Client provides SpenglerFox with logos, trademarks and other items of intellectual property for use by SpenglerFox in advertising and promotional material developed on behalf of the Client in accordance with the Terms of Business, the Client warrants that it is either the sole legal and beneficial owner of any and all intellectual property rights in such intellectual property or that it has the right to grant SpenglerFox the necessary authority to use such intellectual property.

7.2. The Client shall indemnify and hold SpenglerFox harmless on demand, from and against all financial and other liability (including legal fees) arising from or in connection with any actual or alleged third party claim brought against SpenglerFox for infringement of any third party intellectual property rights and which arise out of or in connection with SpenglerFox’ or the Client’s use or possession of the material which the Client provides to SpenglerFox pursuant to Clause 7.1.

8. Confidentiality, Competition and Non-Competition clause

8.1. Both parties shall keep confidential all information connected with the other party or which comes to the other party’s knowledge under or as a result of the Assignment and shall not disclose it to any third party or use it other than for performance of the Interim Services. Exceptions to this provision are (i) with the prior written agreement of the party whose Confidential Information is to be disclosed or (ii) by requirement of law.

8.2. All Confidential Information which has been supplied to SpenglerFox by the Client is for the purposes of carrying out the services under this contract and for no other reason. SpenglerFox shall use reasonable endeavours to ensure that its personnel and the Interim Manager shall destroy all such information, or return all such information, at the termination of the assignment

8.3. The Client will not disclose to the Interim Manager details of any charges paid by the Client to SpenglerFox.

8.4. During the term of this Agreement, the Interim Manager is permitted to undertake activities on his own account and activities for other companies, insofar as these activities do not compete with the Client.

9. Data Protection

9.1. Each of the Parties shall comply with all applicable requirements of applicable privacy law and data protection legislation. Each party agrees to perform its legal obligations in relation to personal data in such a way as to not cause the other Party to breach any of their obligations under applicable privacy law and data protection legislation. This clause 9 does not relieve, remove or replace, a Party’s obligations under applicable privacy law and data protection legislation.

9.2. The Parties acknowledge that each Party is a Controller of its personal data. To the extent that contemplated negotiations or projects will involve the processing of personal data by one Party on behalf of the other Party, the Parties enter into an appropriate Data Processing Agreement to agree and set out the scope, nature and purpose of the processing, the duration of the processing and the types of personal data and categories of data subjects concerned and to set out their respective rights and obligations in order to ensure such processing is carried out in a lawful, fair and transparent manner and otherwise in accordance with applicable privacy law and data protection legislation. This Data Processing Agreement (Schedule 1) is an integral part of the Agreement.

10. Indemnity

Subject to clause 6.2, each Party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified Party to the extent arising out of or in connection with the breach of Data Protection Legislation by the indemnifying Party, its employees or agents, provided that the indemnified Party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.

11. Severability

Should any provision of this Agreement be invalid or unenforceable, in whole or in part, or contain a gap, all remaining provisions of this Agreement shall be unaffected thereby. In this case, the invalid clause shall be replaced with a valid, enforceable provision that most closely approximates the economic and legal intent of the invalid clause. The same applies to filling gaps in the provisions hereof.

12. Final provisions

12.1. Amendments and addenda to this Agreement shall be valid only if they are agreed in written form between the parties.

12.2. The Contract and these Terms of Business shall be governed by and construed in all respects in accordance with the laws and the exclusive jurisdiction of the courts of the country in which the SpenglerFox Legal Entity, who is a party to this Agreement, is registered.

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